[2020] KEHC 3976 (KLR)
The court found that the appellant, having been convicted of stealing Kshs.160,000 and being a repeat offender for a similar offence, was lawfully sentenced to three years imprisonment. The appellant failed to surrender the stolen money, and no part of it was recovered. The court held that the sentence was neither...
Source-derived case information.
- Citation
- [2020] KEHC 3976 (KLR)
- Parties
- Appellant: Francis Mutua Musyimi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 149 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Stealing, Sentencing Principles, Repeat Offender, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Mutua Musyimi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for the offence of stealing was harsh or excessive.
- 2 Whether the appellant's reformation and remorse warranted reduction of sentence.
Ratio Decidendi
The court found that the appellant, having been convicted of stealing Kshs.160,000 and being a repeat offender for a similar offence, was lawfully sentenced to three years imprisonment. The appellant failed to surrender the stolen money, and no part of it was recovered. The court held that the sentence was neither harsh nor excessive, and the appellant's claimed reformation was for his own benefit and did not warrant interference with the sentence. Consequently, the appeal lacked merit and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of three years imprisonment are upheld.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRA NO. 149 OF 2019
FRANCIS MUTUA MUSYIMI.......................APPELLANT
-VERSUS-
REPUBLIC...................................................RESPONDENT
(Being an appeal from the Judgment of Hon. J. Mwaniki(SPM) in Makueni
Senior Principal Magistrate’s Court Criminal Case No. 542 of 2015 delivered on 2/8/2018).
JUDGMENT
Francis Mutua Musyimi the Appellant herein was charged with the offence of stealing contrary to section 275 of the Penal Code. The particulars were that the Appellant on the 9th day of August 2015 at Wote town in Makueni county jointly stole Kshs.160,000/= (one hundred and sixty thousand) the property of Alexander Musau Kioko.
After a full hearing, the learned trial Magistrate found the Appellant guilty and convicted him. He was sentenced to serve three (3) years imprisonment on 2nd August 2018. He filed this appeal challenging only the sentence. His submissions are based on the request for reduction of his sentence by this court. He says he is remorseful and has completely reformed.
Learned counsel for the State Mrs. Anne Gakumu submits urging the court not to interfere with the conviction and sentence as the same are lawful. She states that the Appellant is not a 1st offender and is deserving of the sentence.
Analysis and determination
As a first appeal court, I have the duty to re-analyse and re-consider the evidence and arrive my own independent conclusion. See Okeno –vs- R 1972 E.A 32; Kiilu & Anor (2005) I KLR 174.
The prosecution case is that the Appellant was driving lorry registration No. KBR 848G for purposes of selling and delivering of beer to customers. The business was for Pw1 Alexander Musau Kioko. On 9th August 2015 he was sent to deliver beer worth Kshs.160,000/= to Pw3 James Matata NthitualiasKen at Mbumbuni. He made the delivery and was paid the cash, (Kshs.160,000/=). He was to make another delivery to a customer in Kalawa.
When he returned from Mbumbuni he parked the lorry and took off without surrendering the cash. His phone went off after a while and he could not be reached. Receipts (EXB1a – c) issued to the Appellant were produced by Pw6 No. 81439 Corporal Lawrence Owuya. The Appellant was then arrested in Kakamega.
The Appellant in his defence denied the charge saying he delivered the beer in Mbumbuni and Kalawa as instructed by Pw1. That he worked from April – August 2015 without pay. He said he had been arrested twice.
An analysis of this evidence shows no inconsistency in the evidence of the prosecution witnesses. The Appellant does not deny being assigned a duty to sell beer. All he says is that he delivered some beer in Mbumbuni and he was arrested. He again delivered more beer in Kalawa and was arrested.
He does not say how much beer he delivered and how much he was paid for it. Pw3 confirmed having paid him Kshs.160,000/=. He never surrendered this money to Pw1 or Pw2 the depot clerk. He converted it to his own use hence the charge of theft. I find that the trial Magistrate arrived at the correct finding after analyzing the evidence.
The conviction is found to be safe. On sentence I find that the Appellant was a repeat offender for a similar offence. No single cent was recovered from the money stolen. The reformation he has undergone is for his own well-being. I find no harshness or excess in the sentence. The upshot is that the appeal lacks merit and is dismissed.
Orders accordingly.
Delivered, signed & dated this 29th day of July 2020, in open court at Makueni.
...........................
H. I. Ong’udi
Judge